Copyright Issues for Artists

Disclaimer: None of the information within should be construed as binding legal advice.

One of the most difficult subjects for artists to understand is copyright law, and it’s an issue that effects artists in many ways.

General Issues for Artists

First, many artists don’t realize that they need permission from photographers if they use somebody else’s photograph as reference for a painting. When an artist uses a photograph for reference, the painting or artwork is called a derivative work. While the artist can maintain some ownership over their own work, they first need permission from the original photographer to use the photo for reference.

There are however clauses in copyright law that allow for compilations, and uses of existing work freely if used in part, or if the original work has been so modified that it can’t be recognized as a reference. There are many nuances here, and although there are legal cases that set precedence, there is no absolute ruling. Each case must be evaluated on its own merit in a civil court (copyright infringement is considered a civil issue, and is not punishable by criminal law).

Second, if you are a portrait artist, or figure artist, and you plan on selling works of art using somebody else’s likeness, you will need a model release in order to sell the work, and in many cases you will need a model release in order to enter juried art shows. The reason is that the person being painted has certain rights about their own likeness, and just because a model sits for you, as a photographer or artist, does not mean that model assigned reproduction rights, or copy rights to you. That needs to be an explicit contract between the model and the artist or photographer, which includes a model release form.

Third, artists often worry about the copyright of their own work, and what their rights are in regard to their work. Many questions arise from this, such as “what if somebody steals my work and uses it on their home page on the Internet?”, and “Can somebody take my artwork off the Internet and make cards and sell them?”. In fact, there are many artists who are afraid to put their art on the Internet for fear that somebody will steal their work, or see it and recreate it, thereby stealing their ideas.

Unfortunately there are risks involved in promoting your work and providing even low resolution digital versions for promotion, blogs, web sites and email. Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed, which means you can’t stop people from copying a style or genre. However, the alternative to taking risk is really only to keep your work in a box where nobody can see it, and your art never gets exposed to the general public. In this case, of course, your art is safe, but will never be known.

The subject of copyright is very complex, and is not only constantly changing, but it’s also vague and open to interpretation.

Below you will find a list of articles and references in regard to copyright law and implementation.

What is the Origin of Copyright?

Although the origin of copyright dates back to the 1700s in England, copyright law is founded in the Constitution of the United States. The constitution explicitly grants Congress the power to create copyright law. Specifically, Congress has the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article 1, Section 8, Clause 8, (the Copyright Clause)

Note that copyright law was originally not just to benefit the author, but society as a whole. Its intention was “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

What is a Creative Work?

A creative work is a tangible manifestation of creative effort such as literature,
music, paintings, and software. Creative works have in common a degree of arbitrariness, such that it is improbable that two people would independently create the same work.The term is frequently used in the context of copyright law.

Do I need to register my artwork with the library of Congress to have copyright?

It’s also a good idea to put copyright information and contact information in the meta data area of your image files. Image files that you share on the internet all have hidden data in the file called “meta data”. This includes a description of the image, the author and contact information. If you use Photoshop, open an image and go to file -> fie info, and you will see the following dialogue box:

copyright meta data

If you see somebody using your image on the internet and it still contains that meta data, then it’s much easier to prove that they stole it.

When you publish your photos on many of the popular photo sharing websites and stock photo websites, you will have the option of deciding what kind of copyright notice gets published with your image. There are different types of copyright that allow you to a) reserve all rights b) reserve some rights but allow some shared use c) open source, allowing full commercial and non commercial use without reserve. These notices are all displayed along with the image, and there’s no need to register the image with Congress to claim those rights.

What is a creative commons license?

Creative Commons is a type of licensing that allows shared usage of copyrighted material. Creative Commons Licensing means that you grant others some of the rights that you have to the photograph or image. Creative Commons licensing allows some flexibility, such as whether you allow commercial use of your photo, and whether you require attribution, such as your name or website, with the use. As an artist creative commons images can be a great resource for reference material to paint from, as many Creative Commons Licenses will allow an artist to create derivative works. It’s important, however, to read the terms of the creative commons license carefully, especially if you are creating commercial artwork as part of a final product to be sold and reproduced in quantity.

The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others mix, tweak, and build upon your work non-commercially. And although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

How can I stop people from stealing my artwork on the internet?

You can’t. So first of all, it’s probably a good idea not to worry about it too much. The real question is, how do you address the issue when you see it.

The answer probably lies in the context. If some fan of your work posts one of your images on their facebook page, then little damage was done. And if they gave you credit for it, then it only helps you, especially if you have a copyright notice on the image so people know how to find you if they want to see more of your work, or if they’re interested in commissioning something from you, for example…

If you see widespread commercial abuse and theft of your images, then you probably need to seek legal help. We’ve seen it happen occasionally, with very large retailers like Target, and it is in fact like battling Goliath. But that shouldn’t stop you from sharing your artwork and building an online reputation. But if your work is stolen or used without your permission, here are some things you can do.

1) Do Nothing

If the infringing person is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement. It may not be worth it at all, and in some cases may benefit you if it leads to more traffic to you and exposure of your art. In many cases people are using your art without permission, but aren’t really making money on it.

2) Request a Photo Credit

If the website provides marketing for you, you may only want to get proper credit. If so, write the infringing person or company a letter giving them the right to use the image. Be sure to designate the parameters of that use, so it’s limited to the website or whatever, but doesn’t give them free reign. Include the condition that the person using your art work post a photo credit with a copyright notice along with it. You may also request that a link be added back to your website.

3) – Prepare a Cease and Desist Letter Yourself

When you don’t want to alienate the infringing person or corporation (they may be someone you know or a potential client. Or they may be naive and don’t understand what they’re doing), you may want to contact them to explain that the use is not authorized and either request payment, a photo credit with a link to your website (as discussed above), or that they cease use of the image. It’s best to do this in writing , either by mail or email.

Photographers sometimes send an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringing person or corporation may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may get you involved in legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

4) – Hire a Lawyer to Send a Demand Letter

When an attorney gets involved, the matter is escalated and tensions usually rise. While the infringing person may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the matter gets taken more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both. Whatever you do, if you involve an attorney and engage in a legal battle, be sure that the potential payout is worth the legal fees and risks of litigation. Resolving disputes with attorneys and courts can be very expensive, and many of the worst offenders are large corporations that steal artwork on a regular basis, and have teams of attorneys that settle law suits out of court with gag orders attached, so it’s difficult to prove a history of litigation and claims against them.

5) Publicly Shame Them

Sometimes it’s very hard to sue a company when they’ve infringed on your copyright. If a company has traced your artwork or reproduced it exactly, then you have a copyright case. But many cases what they’ll do is recreate your artwork just slightly differently so that it’s not the exact same image and that’s hard to fight. For example, Urban Outfitters is notorious for cleverly stealing people’s artwork in a slightly different way. In cases when you can’t really fight the case legally, you can instead publicly shame the company or individual. Let the world know they’re thieves using social media, and if enough people do it the community can establish a public record of serial criminal behavior. This is often more effective in achieving results than the formal ways of seeking retribution, since companies also don’t want their reputations blemished.

What is Fair use?

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

Fair use deals with the concept that even though a work is copyrighted, and the artist, photographer, or writer has exclusive rights, that certain uses do not constitute copyright infringement. Some artists are under the misconception that once a work is out there in the wild, that any use requires permission.

Copyright attempts to balance the need for copyright protection with the need for the public to freely exchange knowledge for both educational, artistic and political reasons. While corporations have been voracious regarding any use of copyrighted materials, and have overstepped their bounds and hijacked copyright law to the detriment of freedom of expression, the courts of have often eventually ruled in favor of free speech (We’ll dive into this discussion in more detail later).

The trick, therefore, according to US law, is to balance Article I, Section 8 of the US constitution
with First Amendment rights for freedom of speech, as well as the general welfare and interests of society as a whole.

As defined by Section 107, under Title 17 of the United States Code:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made
upon consideration of all the above factors.

What is a Work of Visual Art?

Under Title 17 of the United States Code, which defines copyright law, a work of visual art is:

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.

Q: What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA), was enacted in 1998, and implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many intellectual property issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from websites that appear to constitute copyright infringement.

Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. Contact the website owner or ISP and request that an image be taken down, whether it be artwork, a photograph, or other intellectual property.

The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

You can send a DMCA Take Down Notice yourself, or consult an attorney. A sample notice would look something like this:

*

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SAMPLE DMCA TAKE DOWN NOTICE

My name is XXXXXXX and I am the XXX TITLE of XXX COMPANY NAME. A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company.

An article was copied onto your servers without permission. The original ARTICLE/PHOTO, to which we own the exclusive copyrights, can be found at: PROVIDE WEBSITE URL

The unauthorized and infringing copy can be found at:

PROVIDE WEBSITE URL

This letter is official notification under Section 512(c) of the Digital Millennium Copyright Act (”DMCA”). I am seeking the removal of the aforementioned infringing material from your server(s). I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.

Please also be advised that law requires you, as a service provider, to remove or disable access to the infringing materials upon receiving this notice. Under US law a service provider, such as yourself, enjoys immunity from a copyright lawsuit provided that you act with deliberate speed to investigate and rectify ongoing copyright infringement. If service providers do not investigate and remove or disable the infringing material this immunity is lost. Therefore, in order for you to remain immune from a copyright infringement action you will need to investigate and ultimately remove or otherwise disable the infringing material from your servers with all due speed should the direct infringer, your client, not comply immediately.

I am providing this notice in good faith and with the reasonable belief that rights my company owns are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved.

Should you wish to discuss this with me please contact me directly.

Thank you.

Insert YOUR NAME

Address
City, State Zip
Phone
E-mail

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Copyright Free Resources for artists

Looking for that special something? Need a reference photo for your next drawing or painting that won’t cause you copyright problems? There are plenty of resources now, and more opening up, for artists and photographers who need images.